Judiciary or society

[queerbait]

OK...this was one of the debate topics that i got a while back,had fun debating on it.It basically questions whether judiciary should take society into account when making decisions...in other words when society is not ready for change, should judiciary make decisions and society must learn to accept it and live with it....or must the judiciary wait for the society to mature and then make decisions.

There are pretty intresting cases of both pakistan and india, when the judiciary does both.For example when Colonial british judiciary disallowed lets say sati, society wasn't ready for it but then it adapted to that decision.Same can be said for Zamindari system abolished by India.But the latter cases are also present,for example it took indian judiciary this much time to accept homosexuality.It came after the society became more acceptable to this fact.so , my question is which way is better : or to put it in other words does is moral highground mightier than societal compulsions..or is it the other way around.

 

[queerbait]

any thoughts in this...i am tagging the few guys i know in this forum : @muse , @BDforever, @KRAIT, @idune, @JonAssad @LoveIcon @WebMaster

 

[muse]

Thanks for the invite - judiciary is also a part of society - but to my thinking judiciary should apply the law, aft all it does nt make laws, it does however apply them

 

[BDforever]

very good topic, as for me is judiciary is best choice.

 

[TruthSeeker]

I agree with muse. If a segment of society seeks to change some law that affects it, it should do so via the legislative function, not the judiciary function. This may mean a long effort to change public opinion first so that legislative "opinion" also changes. If the "pressure" group, instead, focuses on getting its agenda passed via the judiciary, the society will be inflamed and the change will not be really accepted in a meaningful way.

 

[Developereo]

I agree with muse. If a segment of society seeks to change some law that affects it, it should do so via the legislative function, not the judiciary function. This may mean a long effort to change public opinion first so that legislative "opinion" also changes. If the "pressure" group, instead, focuses on getting its agenda passed via the judiciary, the society will be inflamed and the change will not be really accepted in a meaningful way.

Not always so simple.

The legislative branch is elected and reflects democracy, which is a fancy name for mob rule.

The judiciary must be the last refuge for individual and minority rights, immune from electoral pressures.

There is a reason the judiciary in many countries is not elected and is appointed for life (short of gross misconduct).

 

[Sugarcane]

@muse & @TruthSeeker already said, Judiciary's role is to provide justice as per laws of land, a judicial system who's decisions are made on basis that society will like it or not can deliver anything but justice. An unjust society can't survive for long. If a society want to change/add new laws than it should press legislative body for it, If government want this than she should make the case and get support of society before making any controversial laws.

 

[TruthSeeker]

Not always so simple.

The legislative branch is elected and reflects democracy, which is a fancy name for mob rule.

The judiciary must be the last refuge for individual and minority rights, immune from electoral pressures.

There is a reason the judiciary in many countries is not elected and is appointed for life (short of gross misconduct).

You are right. In some instances a minority must appeal directly to the judiciary. However, I think this should be when the legislature has passed laws which violate, in the minority's opinion, rights that are constitutionally protected, as in the case of blacks in the American south. If the minority is claiming "rights" not recognized already by the nation's constitution, then I think it must first try to get the legislature to grant the sought after rights.

 

[Developereo]

You are right. In some instances a minority must appeal directly to the judiciary. However, I think this should be when the legislature has passed laws which violate, in the minority's opinion, rights that are constitutionally protected, as in the case of blacks in the American south. If the minority is claiming "rights" not recognized already by the nation's constitution, then I think it must first try to get the legislature to grant the sought after rights.

Right.

So, short of "activist" judges, even the judiciary ultimately reflects society.

P.S. that, of course, leads to the question whether activist judges are good or bad.

 

[queerbait]

Not always so simple.

The legislative branch is elected and reflects democracy, which is a fancy name for mob rule.

The judiciary must be the last refuge for individual and minority rights, immune from electoral pressures.

There is a reason the judiciary in many countries is not elected and is appointed for life (short of gross misconduct).

Spot on bro...my exact thoughts...but you understand that when judiciary soughts to protect individual rights by interpreting the constitution like article 377 on gay rights in india or making statuary acts on euthanasia...it upsets the majority....then what?

 

[Developereo]

Spot on bro...my exact thoughts...but you understand that when judiciary soughts to protect individual rights by interpreting the constitution like article 377 on gay rights in india or making statuary acts on euthanasia...it upsets the majority....then what?

Well, that's the debate. Some people consider such interpretations to go beyond the judiciary's role and call it judicial activism.

I don't really have an opinion either way, because each such instance of "activism" needs to be taken on its own merit.

 

[queerbait]

I agree with muse. If a segment of society seeks to change some law that affects it, it should do so via the legislative function, not the judiciary function. This may mean a long effort to change public opinion first so that legislative "opinion" also changes. If the "pressure" group, instead, focuses on getting its agenda passed via the judiciary, the society will be inflamed and the change will not be really accepted in a meaningful way.

But don't you think it also depends on the way the judiciary interprets the constitution....i remember in the famous Keshavnanda bharthi case indian judiciary stated that anything that violated the basic constitution even if passed by parliament is null and void......similarly many reforms have been made by judiciary and not the legislative.......judiciary when making these judgements stated that they were in accordance to the interpretation of the constitution